Lawyers for Pakistani man whose father was killed by drone
strike seek to have sharing of UK intelligence declared unlawful

By Ian Cobain

October 25, 2012 "The
Guardian"
-- The British government's support for US drone operations
over Pakistan may involve acts of assisting murder or even war
crimes, the high court heard on Tuesday.

In the first serious legal challenge in the English courts to
the drones campaign, lawyers for a young Pakistani man whose
father was killed by a strike from an unmanned aircraft are
seeking to have the sharing of UK locational intelligence
declared unlawful.

Noor Khan, 27, is said to live in constant fear of a repeat of
the attack in North Waziristan in March last year that killed
more than 40 other people, who are said to have gathered to
discuss a local mining dispute.

The British government has declined to state whether or not its
signals intelligence agency GCHQ passes information in support
of the CIA drone operations over Pakistan, although the court
heard that media reports suggest that it does.

The case opened as the RAF confirmed that it is to double the
number of its own drones flying combat and surveillance
operations over Afghanistan. The five additional aircraft will
be operated from the UK for the first time, rather than the US.
The UK's existing Reaper drones, which are used to target
suspected insurgents in Helmand province, have been operated
from Creech air force base in Nevada because the RAF has not had
the capability to fly them from Britain.

Martin Chamberlain, counsel for Khan, said that a newspaper
article in 2010 had reported that GCHQ was using telephone
intercepts to provide the US authorities with locational
intelligence on leading militants in Afghanistan and Pakistan.
The report suggested that the Cheltenham-based agency was proud
of this work, which was said to be "in strict accordance with
the law".

On the contrary, Chamberlain said, any GCHQ official who passed
locational intelligence to the CIA knowing or believing that it
could be used to facilitate a drone strike would be committing a
serious criminal offence.

"The participation of a UK intelligence official in US drone
strikes, by passing intelligence, may amount to the offence of
encouraging or assisting murder," he said. Alternatively, it
could amount to a war crime or a crime against humanity, he
added.

Chamberlain said that no GCHQ official would be able to mount a
defence of combat immunity, but added that there was no wish in
this case to convict any individual of a criminal offence.
Rather, Khan was seeking a declaration by the civil courts that
such intelligence-sharing is unlawful.

Between June 2004 and September this year, according to research
by the Bureau of Investigative Journalism, drone strikes killed
between 2,562 and 3,325 people in Pakistan, of whom between 474
and 881 were civilians, including 176 children.

With the number of drone strikes increasing sharply under the
Obama administration, the London case is one of several being
brought by legal activists around the world in an attempt to
challenge their legality of the programme.

In Pakistan, lawyers and human rights activists are mounting two
separate court claims: one is intended to trigger a criminal
investigation into the actions of two former CIA officials,
while the second is seeking a declaration that the strikes
amount to acts of war, in order to pressurise the Pakistani air
force into shooting down drones operating in the country's
airspace.

During the two-day hearing in London, lawyers for Khan are
seeking permission for a full judicial review of the lawfulness
of any British assistance for the US drone programme.

Lawyers for William Hague, the foreign secretary, say not only
that they will neither confirm nor deny any intelligence-sharing
activities in support of drone operations, but that it would be
"prejudicial to the national interest" for them even to explain
their understanding of the legal basis for any such activities.

For Khan and his lawyers to succeed, they say, the court would
need to be satisfied that there is no international armed
conflict in Pakistan, with the result that anyone involved in
drone strikes was not immune from the criminal law, and that
there had been no tacit approval for the strikes from the
Pakistan government – another matter that the British government
will neither confirm nor deny.

The court would also need to consider, and reject, the US
government's own legal position: that drone strikes are acts of
self-defence. It would also need to be satisfied that the
handing over of intelligence amounted to participation in
hostilities.

The government also says that Khan's claim would have a
"significant impact" on the conduct of the UK's relations with
both the US and Pakistan in an "acutely controversial, sensitive
and important" area, and also impact on relations between the US
and Pakistan.

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